Frequently Asked Questions about the 2013 Reform Act
Effective Date of the Reforms
Will claims that occur prior to July 1, 2014, but have medical treatment that extends beyond that date, be settled under the new law or the old law?
The old law. The law that will govern a claim is determined by the date of the injury, not the date of medical treatment, maximum medical improvement, court hearing, or even settlement. The new law will govern injuries occurring on/after July 1, 2014.
What can be done if employers can’t get approval from their insurance adjusters for medical treatment, such as physical therapy, in a timely manner?
It is the duty of the employer to ensure that benefits are provided in a timely manner. An employer or insurance carrier may be assessed a civil penalty for failing to timely provide treatment. Accordingly, and to avoid a potential penalty, the employer has the responsibility to work with the adjuster to ensure that approval decisions are made in a timely manner. Additionally, an employee who is having difficulty getting treatment approved in a timely manner may come to the Bureau for help. For an injury on or after July 1, 2014, an employee may file a petition for benefit determination. For injuries prior to July 1, 2014, an employee may file a Request for Assistance. In either case, a Bureau of Workers’ Compensation mediator will provide assistance to resolve the issue. If no agreement is reached, an appropriate official with the Bureau will issue an order after hearing from the employee and the employer.
If the employer’s insurance carrier fails to pay temporary total disability benefits or to provide necessary medical treatment even though the carrier was timely notified of the injury by the employer, is the carrier or the employer going to be ordered to pay any potential penalty?
Any penalty assessed would be against the insurance carrier in this instance.
If the physician selected to be the attending physician by the injured employee is from a properly provided panel, but is not available when the employee gets to the doctor’s office and the injured worker is seen by the physician’s nurse practitioner, is the visit with the nurse practitioner an authorized visit?
Yes. According to an Attorney General’s opinion if the nurse practitioner is working under the supervision of the physician and in accordance with protocols developed and/or approved by the physician, it is an authorized visit.
When a treating physician refers an injured worker to a specialist, does the employer have three (3) business days or three (3) calendar days to provide a panel as an alternative?
The employer has three (3) business days from the day the employer/insurer receives the specialist referral from the authorized treating physician to provide an alternate panel. If an alternate panel is not provided, the employer is deemed to have accepted the referral.
Does the new law remove the requirement for an employer to include a chiropractor on the medical panel in a claim for a back injury?
Yes. For dates of injury on/after July 1, 2014, there is no requirement to have a chiropractor on a medical panel, but employers and insurers may still choose to do so.
How much is the penalty for not providing a proper medical panel?
The penalty can be up to $5,000 per violation.
Access to Medical Records
Does the employer have the right to receive medical information about the injured worker’s medical treatment?
Yes. The reform law allows the employer or the employer’s representative to communicate with the physician authorized to treat the injured worker for the workers’ compensation injury. The law also removes the requirement that the injured worker sign a medical waiver before the employer is allowed to review the medical records related to the authorized treatment for the workers’ compensation injury.
Will an employer still have to have a signed release to obtain previous medical information if the employer suspects that previous medical issues affect or relate to a reported injury?
Yes. A signed release will be still be required for medical records other than the records of the authorized treating physician that are directly related to the subject workers’ compensation injury.
Can an employer require an injured worker to contact the ombudsman?
No. An employer can tell an injured worker about the ombudsmen program, but cannot require the injured employee to contact an ombudsman.
Can the ombudsman give legal advice as well as inform an injured worker of their rights and obligations under the law?
No. The ombudsmen may help unrepresented injured workers and unrepresented employers by providing information, assisting with the preparation of forms, explaining the processes involved in a workers’ compensation claim, and facilitating communication among the parties, but they cannot give legal advice to either party.
Mediations and Settlement Approvals
Will the current benefit review process go away and be replaced by the Workers’ Compensation judicial process?
No. The Bureau will continue to work informally with parties to resolve conflicts. Mediation will continue to be a vital part of the claims process. Claims will move to the Workers’ Compensation judicial process only after diligent efforts to resolve differences have not succeeded. And, claims for injuries that occur prior to July 1, 2014 will continue to be handled in the same way that they are currently handled.
Under the law applicable for injuries before July 1, 2014, if an injured worker is entitled to a permanent partial disability benefit, there are limits on the amount of the award. The limits are:
- Up to one and one-half (1.5) times the impairment rating if the injured worker returns to work for the same employer at the same or higher salary; and,
- Up to six (6) times the impairment rating if the injured worker has not returned to work or returns to work for the same employer but loses employment within 400 weeks of the day he or she returned to work.
Will these limits still apply to permanent benefits under the new law?
No. There is a different benefit structure. If the injured worker is able to return to work for any employer making at least the pre-injury wage, the permanent partial disability benefit is one (1) times the impairment rating and is available to the injured worker when he or she reaches maximum medical improvement. If the injured worker is not able to return to work for any employer at the end of the initial benefit period (impairment rate times 450 weeks), the injured worker is eligible for additional benefits based on factors related to the inability to return to work, including age, education, and unemployment in the county in which they worked.
Do injuries to body parts such as fingers, toes, and hands that were formerly listed as “scheduled members” under the old law get converted to a “body as a whole” injury under the new law?
Yes. All injuries that occur on or after July 1, 2014 will be determined on the basis of an injury to the “body as a whole.” The 6th edition of the AMA Guides to the Evaluation of Permanent Impairment provides the information treating physicians will need to make conversions for injuries to formerly “scheduled members” of the body to “body as a whole” ratings.
Where can I find the unemployment information for when an injured worker does not return to work?
Unemployment rates are published each month by the Tennessee Department of Labor and Workforce Development and are available here.
How are an injured employee’s rights to additional benefits affected if the injured employee loses his or her job due to no fault of their own, such as a job layoff?
An injured employee’s right to additional benefits is determined by his or her employment status at the time the initial benefits period ends, so there are several factors to consider:
If the employee is employed at the same or greater wage by any employer at the time the period of initial benefits ends, the employee is not entitled to any further benefits for that work-related injury.
If the injured worker is laid off during the initial benefit period and has not returned to work by the time that benefit period ends, the employee would be entitled to additional benefits.
If the employee keeps his or her job when the initial benefits period ends, but suffers a reduction in salary or hours that also affects at least fifty percent of the other hourly employees at the injured worker’s location, the employee would not be entitled to additional benefits.
Are the permanent partial disability (PPD) benefits paid during the initial benefit period to be paid periodically or in a lump sum? How are any additional benefits paid? Can a worker settle his or her eligibility for “additional benefits” prior to the end of the initial benefit period if the worker has returned to work during that benefit period (i.e., can a worker give up the right for an amount in the future that might be more if the worker’s employment ceased sometime before the end of the initial benefit period)?
Whether the benefits are paid periodically or in a lump sum is left up to the parties. It is also up to the parties whether they want to settle the issue of future benefits before the period of the initial benefit has ended.
How will impairment rating differences between the authorized treating physician and an IME physician be managed during the mediation process?
Under the reform law, the parties may settle the entire claim at any time after the employee reaches maximum medical improvement. The parties will have discretion to determine the proper impairment rating to apply when deciding upon the settlement terms.
Will the parties continue to have mediations in a benefit review conference and/or settlement conferences at the office of the Workers’ Compensation Bureau if the settlement is undisputed? And, will settlements be approved by the Bureau ’s workers’ compensation specialists or is there a new process in place?
The mediations and settlement conferences will continue to be held at the Workers’ Compensation office when the settlement is undisputed, although they will not be called “benefit review conferences.” However, all settlements of injuries that occur on or after July 1, 2014 will have to be approved by a workers’ compensation judge rather than a workers’ compensation specialist.
Medical Causation and Evidence
How will treating physicians provide an opinion as to whether or not a reported injury is at least 50 percent work-related?
The Bureau is preparing a form that physicians can utilize to document the 50 percent threshold.
If a treating doctor’s rating is presumed to be correct, doesn’t that mean no one will need to get an IME (Independent Medical Examination)?
Not necessarily. The treating doctor’s rating is presumed to be correct, but the presumption can be overcome by a preponderance of evidence to the contrary obtained through an IME.
Workers’ Compensation Court
Are there any fees for court hearings or approvals?
There will be a $150 filing fee for all approvals. There is no charge for the hearings.